Company boss and the courts add insult to injury for migrant worker in Wuhan

Company boss and the courts add insult to injury for migrant worker in Wuhan

06/12/2007

China has a wide range of laws and regulations related workplace injury insurance and compensation that should in theory protect workers' interests by covering medical costs and economic losses resulting from an accident at work or work-related illness. Employers are supposed to pay industrial injury insurance premiums on behalf of their employees; those who do not contribute to an insurance scheme should be liable for all expenses that result from a work-related accident.

The reality is very different, especially for migrant workers many of whom do not have a labour contract with their employer. Very often employers will deny any liability for an accident and refuse to pay any compensation, or at most make a token payment in an attempt to make the problem go away. Migrant workers have successfully sued for industrial injury compensation but it is often a tortuous process that results in only limited benefit.

In August 2006, CLB Director Han Dongfang, talked to Zeng La'an, a migrant worker from Hubei, who was severely injured on 6 January 2005 while working at Shima Logistics Co, a transport firm in Wuhan's Qiaokou district. Zeng described his long battle, first with the hospital to get any treatment after the accident, then with his boss who refused to pay any compensation, and then with the local arbitration committee and courts who either refused to accept his case, obfuscated or delayed judgment and payment. At the time of the interview, Zeng was aged 49, with a wife and two sons. The older son was working and the younger son was in college, which cost the family over 10,000 yuan a year. Zeng had been earning about 800 yuan per month at his job with Shima and earned another 200 yuan moonlighting elsewhere. His wife also worked. His injuries still caused him great pain and he could no longer perform the kind heavy manual labour he was capable of before the accident. Even climbing the stairs was painful, he said.

Hit and run

On the night of the accident, Zeng was the foreman in a team of eight loaders. His boss ordered him to move some goods, located on the south side of a highway, to a storage area on the north side. Zeng was hit by a car while crossing the road carrying a more than 100 pound load on his shoulders. Zeng's upper right leg was shattered and the lower leg was broken in two places. Zeng's co-workers, who were unloading the goods he was carrying, saw the accident. They pursued and stopped the car that had hit Zeng, but the driver brandished a knife and fled. They called the police, who took Zeng to the Wuhan No. 1 Hospital and impounded the car, which had been left behind. When staff at the hospital discovered that Zeng had no insurance and could not pay for his treatment, they refused to give him the emergency surgery he needed. They told him that, if he couldn't pay, the pharmacy would not give him the necessary drug prescriptions after the operation and he would be crippled. The hospital "pressed us every day to pay them saying, ‘When you pay us, we'll give you the operation'," he said. Zeng promised them he would obtain the money as soon as possible but, eight days later he had still not had the surgery.

With no other options, Zeng moved to the smaller Hanna Hospital, where he had an acquaintance, his son's schoolmate, who arranged for the surgery on his personal guarantee that Zeng would repay the expenses after recovering. Zeng eventually paid nearly 18,000 yuan in medical expenses.

Although Zeng had been working at Shima Logistics Co (a private firm with a number of subsidiaries) since March 2004, he had not been given a labour contract, indeed, he indicated that "no one had a labour contract" with the company. The company owner "absolutely refused to acknowledge" any responsibility for Zeng's medical expenses, claiming that the incident was a traffic accident and saying "it wasn't me that injured you." People went to see the boss a number of times on Zeng's behalf, arguing that he was on the job at the time of the accident and, according to China's labour laws, his injuries were occupational injuries. The boss "hid from us," evading the visits and telephone calls. Finally, the company owner gave Zeng 2,000 yuan while he was at Hanna Hospital, due in part to the intervention of the police who had handled the accident. After repeated entreaties, the boss paid another 2,000 yuan, but "would not listen to arguments from anyone after that." Later, when Zeng himself was refused again during a visit to the company, he blocked in the company vehicles in protest, telling the boss, "If you aren't even going to give me a penny, you can forget leaving. Go ahead and run over me if you want to go." At that point, the company handed over another 1,000 yuan. "I had no choice," said Zeng, "I had to do that because I was really out of money."

"Sue the car!"

Zeng was initially reluctant to take legal action but, in April of 2005, he hired a lawyer and took his case to court as a traffic incident. The police had been unable to locate an owner of the car; it was not registered and its license plate number had been tampered with. The police had issued Zeng with a traffic accident liability confirmation statement, but it named no one associated with the vehicle. The police told Zeng that they needed to close the case and move on. Zeng said he therefore essentially had to "sue the car," and the court refused to admit the case on the grounds that there was no defendant.

Zeng then went to the Qiaokou District Labour Dispute Arbitration Committee (LDAC), which refused to admit his case as a labour-dispute case on the grounds that there was no labour contract. They claimed that there was insufficient evidence of a labour relationship and, without a statement from his employer acknowledging that he was a regular employee of the company they would not take on the case. "If he fully acknowledged it, he would have to compensate me, and then why would I need arbitration?" said Zeng. His co-workers were willing to testify that he had been on the job when the accident occurred, but this was deemed insufficient and Zeng was unable to proceed with arbitration.

Meanwhile, as a result of Zeng's call to a legal assistance line affiliated with a local satellite TV station, the company owner admitted during an interview with the TV station that Zeng was his employee. At first, Zeng said, the boss refused the interview, but gave in after the reporter told him, "If you don't treat this man fairly, you will be responsible for the consequences." Even so, Zeng was forced to threaten the boss with a lawsuit, using the interview as proof, to get him to issue a document verifying Zeng's employment. The boss assumed that Zeng would use the document to pursue the traffic accident case. Zeng actually intended to bring suit against the company itself. He knew he had "pulled a fast one," but felt that this somewhat deceptive method was the only way he could obtain proof of his employment with the company.

With a new attorney, Zeng went to court for the second time in July 2005, this time as a work-related injury case with Shima Logistics Co as the defendant. The court at first refused the case, indicating that Zeng lacked important documentation, despite his proof of employment and available witnesses. The court dragged its feet but, after Zeng's lawyer provided more documents and pointed out the relevant provision of China's Labour Law to the judge, the court finally heard the case in October. "I had witnesses and material evidence, and the defendant could not deny them," said Zeng. The company's attorney did not contest Zeng's allegations in the face of the evidence. But it took three months for the court to reach a decision that, under relevant laws, should normally have taken only 15 days. "The court deliberately made things difficult for us," Zeng said. He went to the courthouse daily during those three months to inquire about his case, and court officials claimed they were very busy, continually telling him to "go home and wait for our phone call; we have to deliberate and discuss the matter."

Same job, different compensation

If he had been a regular employee of long-standing, Zeng said, he could have won about 40,000 yuan in compensation. However because he was a migrant worker who had been at his job for less than one year, his lawyer advised that he only ask for a compensation award of 30,000 yuan. In the end, when the case was finally decided in January 2006, Zeng was awarded just 24,000 yuan. Moreover, at the time of the interview, Zeng had only received 5,000 yuan of the 24,000 yuan awarded by the court.

Zeng had asked for a one-off award for his disability; the other option would have been a legally-mandated return to his company to work at a job suited to his physical condition, but Zeng said he feared that the boss would "give me a hard time." The 30,000-yuan claim Zeng submitted to the court had included previous and ongoing medical expenses, living expenses, legal expenses, and disability compensation. Zeng had obtained a verification of his disability but said his former employer had managed, by going through people he knew in the system, to get Zeng's disability rated at 10, the lowest level on the industrial injury rating scale. "After I came back," Zeng said, "everyone told me I should not have this rating." His lawyer told Zeng that he should have been rated a 9 at the very least, because he was disabled for life. A 10 rating indicates that the injured party will eventually be able to return to their previous work, something Zeng was clearly unable to do.

Zeng and his wife wanted to leave Wuhan and return home but, at the time of the interview, he was waiting to receive the rest of his compensation. The 5,000 yuan awarded so far was only provided after Zeng applied for compulsory enforcement of the award. Zeng was told by the court that his award would be paid in installments, despite legal provisions that there should be a one-time payment. The enforcement office told Zeng that he needed to go back and talk with his former boss in order to ascertain the value of his assets, saying that they could do nothing unless he provided this information. Zeng thought that it was the court's job to make such an investigation, but did it himself and found that the company owner had several cars and houses. The court indicated that it could not repossess a car because it was worth less than what was owed to Zeng, or freeze his bank accounts, because they were found to be empty. When Zeng asked them to act, the enforcement office told him to investigate the bank accounts further. "Do I have a private detective?" Zeng said to them, "How am I supposed to investigate this? You are supposed to do the investigating." By this time, Zeng had no lawyer to assist him because he was out of money. Zeng's multiple visits to the court, to remind them of the provisions of the law they were not following, gave him a reputation as something of a troublemaker. Court officials warned him not to make things worse for himself.

After Zeng applied for compulsory enforcement, the company owner signed an agreement in court to pay Zeng another 10,000 yuan on August 25, 2006. At the time of the interview, Zeng could not say for sure whether he would get the 10,000 yuan promised. Zeng did say however that he was determined to fight on, "living at the courthouse" if necessary, to get the money owed him. "I have to survive somehow," he said, "I will fight this to the end."

Han Dongfang's interview with Zeng Li'an was originally broadcast in five episodes in August 2006. To read a transcript or listen to the audio file of the broadcast please go the workers' voicessection of our Chinese language website and follow the links

Story Highlight

It is the duty of the union to represent workers in negotiations with employers, it should not just sit on its hands. Neither should the Trade Union Law just exist on paper. The union should shoulder its legal responsibilities towards workers by defending their rights.

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